Commonly Encountered Elder Law Terms
For seniors or adult children with elderly parents, some of the terms you might commonly encounter
in the elder law process can be uncommon. While you should always ask about any terms you are
unfamiliar with, here are a couple of the more common you may come across which you need to
understand to best grasp many elder law concepts and situations.
Many elder law situations involve fiduciary relationships. A fiduciary relationship is one in which one
person owes a high standard of care to the person he or she is serving. For example, if you are named
trustee of a trust your parents create, you have a legal duty to do what is in the best interests of the
beneficiaries. Fiduciaries cannot use their positions to better their own interests at the expense of
those whom they serve. This is a legal duty, and failing to meet this obligation can cause significant
legal trouble for the fiduciary.
Many elderly people are concerned that they might lose the ability to make their own choices because
of medical conditions, illness, or similar situations. Legal incapacity, also known as legal incompetence,
occurs when someone loses the ability to make knowing choices. For example, if you suffer from a
debilitating cognitive disease such as Alzheimer's disease, you may eventually lose legal capacity.
However, only a court can determine if you are legally incapacitated if you do not have a power of
attorney or trust which sets forth the criteria for establishing legal capacity. In such documents, the
standard usually involves written statements from a treating physician that due to the person’s
medical or mental condition, he or she is unable to properly handle his or her affairs. Further, if you
are physically incapacitated but remain mentally fit, you can still make decisions and documents even
if you have to rely on someone else to write them or even sign them for you.
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